www.beppegrillo.it
27 July 2010
A non-political CSM
(19:06)
The Clan and the new CSM (Upper Council of the Magistrature)
This Monday we’ll be discussing the CSM, which will be totally re-constituted once the magistrates have elected their 16 council representatives, or the so-called “togati” (literally the men with the togas).
The CSM consists of a Chairman, who is also the incumbent Head of State, namely the State President, plus another two legally appointed members, namely the Senior President of the Court of Cassation and the Chief Prosecutor of the Court of Cassation. In other words, there are currently three appointed to the CSM by virtue of their position, so these two incumbent magistrates and the incumbent State President are not elected but are members of the CSM anyway. Then there is a Deputy President of the CSM, who is elected by Parliament from amongst the 8 lay members that, according to the wishes of our founding fathers, should be senior figures from the legal profession or the world of jurisprudence, individuals with proven ability, authority, prestige and independence who, in the past few decades, and precisely because they are elected by Parliament, have instead been failed politicians in search of a lucrative position, or in some cases even permanently appointed politicians who spend five years serving on the CSM before returning to active politics, where they proceed to neither represent the law, nor the citizens as would be required of a parliamentary appointee, but merely the interests of their respective political parties.
But let’s start by looking at what our Republican Constitution has to say about the CSM, which is a constitutional body. In Article 104, we read that “The Magistrature is an autonomous body that is totally independent from any form of political control”. So it is an Order, but also one of the State powers. The CSM is presided over by the incumbent State President with the Senior President and the Chief Prosecutor of the Court of Cassation as members by right, while 2/3 of the remaining members are elected by all the appointed magistrates and the remaining 1/3 of the members by Parliament. So, as I’ve already stated, the current composition of the CSM is 8 lay members (1/3) and 16 “togati” (2/3).
1/3 by Parliament, in a normal sitting made up of ordinary university professors in juridical matters and Attorneys of 15 years’ standing, in Counsel elects one Vice President from amongst the individuals designated by Parliament. The elected Council members will remain in office for a period of four years. Earlier I said 5 years, I apologise, I was talking nonsense. They remain in office for four years and cannot be re-elected immediately for a second term. They have to sit out at least one term before they once again become re-eligible and while in office, they may not be registered with any professional association, nor may they be elected to Parliament or any Regional Council.
According to Article 105 and in terms of the structural regulations, the CSM is responsible for all engagements, appointments, transfers, promotions and disciplinary action involving magistrates. Article 106 states that the appointment of magistrates must occur by means of an official testing and selection process while the regulations also provide for the appointment of Honorary Magistrates to fulfil any of the functions normally assigned to individual judges and the CSM may call upon these magistrates to act as councillors for the Court of Cassation by virtue of their experience as university professors specialising in legal matters, on condition that they have 15-years of experience in the field and are registered in the professional registers for higher jurisdictions, and that’s what we need to know about the CSM.
But what is happening now? What is happening is that the Magistrature, or at least a part of it, is at the centre of a controversy because a little group of magistrates have been caught out, in wiretapped telephone conversations, dealing with the wheeler-dealers of what has been called the new P2, also referred to as the P3. People involved with Mr. Carbon, the man convicted for the crash of the Ambrosiana Bank, with Dell’Utri, convicted for tax evasion, convicted on appeal for mafia collusion and accused of numerous other offences involving slander, etc., with a certain man by the name of Pasqualino Lombardi, a retired surveyor from Avellino that was incredibly had his fingers in all sorts of pies, with a man by the name of Arcangelo Martino, a former socialist and now a member of the Popolo delle Libertà, now also convicted of collusion, and a variety of other shady characters. Amongst these magistrates caught dealing with members of this clan are the Undersecretary to the Justice Department, Massimo Caliendo, Judge Gargani, who is the brother of a former Christian Democrat and now Forza Italia Deputy, and then there’s Judge Marra, who was shoo’d-in as Judge President of the Appeal Court of Milan due to pressure exerted by this clan, as well as a number of others, such as the Judge President of the Appeal Court of Palermo, a man by the name of Marconi, and others that that even the CSM is now dealing with.
This clan was putting pressure on members of the CSM to get certain buddies appointed as magistrates, individuals that the clan deemed to be reliable or not to appoint magistrates that the clan, or their masters deemed to be unreliable. While this Council was making these types of appointments, we mustn’t forget about the Senior President of the Court of Cassation, a man who fortunately went on pension a month or two ago, namely Vincenzo Carbone. He too was on decidedly friendly terms with that Pasqualino from Avellino, and that during his tenure as Senior President of the Court of Cassation and Chairman of the United Sections when they chucked out or punished certain magistrates on behalf of the clan, magistrates that supposedly “unreliable”, such as Clementina Forleo, Luigi De Magristris, Nuzi, Verasani and Apicella in Salerno. They punished Alfonso Sabella who didn’t get the appointments he asked for and was subjected to a discreet lynching after having opposed the disassociation, a plan that was part of the State – mafia negotiations that took place while he was with the Prison Administration Department and in charge of the prisons. Unreliable magistrates in power, this clan and its hangers-on, both amongst the lay members and the “togati” of the CSM, were simply brushed aside or even punished.
Therefore, in order for the CSM to regain its intended prestige, it would be essential that this new CSM be made up of individuals with a proven history of autonomy and independence, that we go back to the original constitutional spirit that strived to improve the quality of legal counsel and, indeed, there is no lack of excellent candidates. There are a number of eminent jurists and eminent constitutionalists that Parliament could opt for. Also because one of them would go on to be chosen as Mancino’s replacement. The Vice President and Mancino, we’ve dealt with this on numerous previous occasions. It certainly cannot be said that he was the epitome of autonomy and independence during his tenure as Vice President. Even as a young man, he was a political animal, as a Christian Democrat, then as a member of the “Partito Popolare” and then in the “Margherita” . In recent years we have noted that his rulings and the positions he has taken have certainly not been those of a man who is supposed to be the epitome of absolute independence, because he too obviously had friends, etc., which I suppose is quite normal and certainly not a crime in itself, however, it would be preferable if the members of the CSM, and especially the Vice President, didn’t have such potentially influential friendships and such an active political career behind him.
A “clean” CSM that works in everyone’s best interests
It would therefore be appropriate for the political parties to take not one, but ten steps back. It would be opportune for the Head of State to stand firm when he tells them to elect the lay members. Because the lay members are elected by Parliament with an absolute majority, not just 50% plus one, there is always the risk that the parties could get involved in some horse-trading, namely the risk that centre-right tells the centre-left “we will vote for some of your preferred candidates but not for certain others”, but equally that the centre-left says to the centre-right “we refuse to vote for certain people, so we’ll vote for certain others”. So the onus lies with the President of the CSM to make an appeal so as to avoid the appointment of politicians’ attorneys or politicians themselves as permanent members, however, the names of the proposed 8 lay-members of the new CSM that we’re seeing in the newspapers are all those of politicians or politicians’ attorneys, many of whom have anything but lily-white backgrounds.
The centre-right should nominate 5 of these lay members and the centre-left the remaining 3, with the Vice President of the CSM being chosen from amongst these. Now we know full well that Berlusconi would like to place some of his trusted buddies in the CSM because his view of the institutions is a distinctly proprietary one. In other words, “I send in people that are loyal to me”. He even thinks this way in terms of the Constitutional Court, so you can just imagine when it comes to the CSM. As a matter of fact, one of the people he wants to appoint is former Justice Minister Bondi, the man that conceived the “Save the thieves” Decree, the one that instigated the audit of the Milan Public Prosecutor’s Office and a man who has been a Parliamentarian for the past 50 years, so enough said.
He also wants to appoint Gargani, the broche of the magistrate that is facing a disciplinary action with regard to his dealings with the P3 and, while we’re not saying that the one brother must be held accountable for the actions of the other brother, however, as was stated in “Il Fatto Quotidiano, the Gargani brothers, both from Avellino, do indeed have a common history in that Judge Gargani, brother of the Hon. Gargani, has spent a lot of time at the Ministry and has often worked at the Ministry, within successive Berlusconi governments, so we’re not talking about any major detachment from the ruling class, and now they want to put them..... oh well, let’s talk about certain others.
So it’s obvious that we cannot rely on Berlusconi to appoint anyone who has displayed “proven autonomy and independence” and it would indeed be extremely surprising if were to do so. However, we could expect certain other people to do precisely that, for example the Fini supporters, who instead apparently want to appoint a certain Mr. Lo Presti, a Sicilian attorney who has also been a parliamentarian on several occasions in the past and who is also certainly no stranger to political gamesmanship. This is to be expected of the Democratic Party, which, being allied to the Italia dei Valori and UDC parties in the opposition, is called upon to agree on 3 candidates, that is unless the UDC manages to get one of the 5 centre-right appointments, so who else would the gentlemen of the Democratic Party want to nominate? They want to nominate D’Alema’s former attorney, a certain Guido Calvi. While he may undoubtedly be an excellent attorney and a great person, he too is far too politically inclined, in addition to the fact that he has represented D’Alema in the past, in the Unipol case for example, in which he castigated the magistrates that investigated, that indeed dared to investigate the dealings of D’Alema and his spouse, wiretapped their telephone conversations and then had the gall to ask Parliament for permission to make use of the wiretapped information. Guido Calvi was also one of the main “ayatollahs” against Clementina Forleo, etc. So, is it opportune for D’Alema’s attorney to be appointed to the CSM? I think not! Just as it is inopportune to appoint Fanfani, grandson of the long-time politician and himself a “good person”, however, also a Margherita parliamentarian for a number of years, or the appointment of a number of other politicians whose names will be announced over the next few days.
Who does the UDC want to send to the CSM? They want to send Michele Vietti, a staunch ally of Casini. A Christian Democrat politician from Turin who was also a former Undersecretary in the Justice Department at the time of the second Berlusconi government, when the UDC was still allied to Berlusconi. As Undersecretary in the Justice Department he approved of, voted in favour of and indeed helped draft all of the shameful laws promulgated during that legislature between 2001 and 2006, as well as being actively involved in the rafting of the tables stipulating the impunity thresholds for the false accounting legislation. As you know, false accounting only constitutes a crime beyond certain thresholds and, surprise surprise, Vietti calculated those thresholds so that Berlusconi fell below them, thereby scuppering all his trials relating to false accounting charges, and this the man they want to see appointed to the CSM and even elected as Vice President of the CSM to replace Mancino, and that with the blessing of the Democratic Party?.
I remember that, years later, even Tremonti stated that perhaps it would be appropriate to reinstate false accounting as a crime, as it was before, but Vietti responded by saying that “I am opposed to the idea of changing the false accounting law once again because that would make it look like the previous one was drafted specifically to protect certain individuals from prosecution”. No! Really? There is no way they would want to change the false accounting law after it had allowed Berlusconi to get off scot-free, scuppering his trials by simply claiming that “the law no longer recognises these activities as a crime”, simply because, with the invaluable help of Castelli and Vietti, the law had decriminalised the offence. Is this the kind of person that is likely to be able to restore the prestige, autonomy and independence of a CSM sullied by the P3? They are sending in an individual who is already politically contaminated so there’s no fear of him becoming contaminated at a later stage, but does the Democratic Party honestly want to make this kind of choice?
In “Il Fatto Quitodiano” we launched an appeal to the Fini supporters, the Democratic Party and the Italia dei Valori party to nominate individuals with proven independence, without any party membership cards and without any form of political background. To date, only Di Pietro has bothered to respond. Micromega launched a similar appeal, signed by Margherita Hack, Paolo Flores D’Arcais, Andrea Camilleri and Umberto Eco, but there has been no response whatsoever, except for tens of thousands of messages of support. In fact, you should go onto either the Micromega website or the “Il Fatto quotidiano” website and log your support. Only Di Pietro has responded, saying “I won’t agree”, although initially it looked like he wanted to nominate Attorney Li Gotti, who is also an excellent person, but he is a parliamentarian and a former undersecretary at the time of the Prodi government, and it’s not a good thing for party members to be nominated at this stage, so Di Pietro said: “I’ll take a step back and I’m happy to support the nomination of a jurist like Vittorio Grevi, like former President of the Constitutional Council, Gustavo Zagrebelsky, like former judge Bruno Tinti or like Franco Cordero, one of the founding fathers of criminal law and the Italian criminal code and procedure. These are the kind of people we are hoping to see appointed, or any one of many others such as Prof. Giostra, Prof. Ainis, or “Il Fatto” collaborator and highly distinguished constitutionalist Lorenza Carlassare, or even former Milan Prosecutor Borrelli, who would be an excellent and most noble candidate that would undoubtedly bring a definite shine to the CSM. I think that the kind of CSM that is about to emerge this week, as from today, also depends on all of us. It depends on the amount of pressure exerted by these appeals and on the number of signatures that these appeals manage to garner in order to put pressure on the Democratic Party, where it would appear that D’Alema’s buddies have already done a deal with Casini’s buddies to support Vietti in exchange for Casini remaining in the opposition rather than heeding the call to side with Berlusconi, as indicated by the dinners at Vespa’s home. The CSM must not be used as a bartering tool by the politicians. That is what we hope and what we must expect from the opposition parties. The Democratic Party voters must remember this because it is precisely at such crucial times that we can really evaluate the performance of the opposition parties. It is precisely at such crucial times that we should decide who to vote for in the next elections, whenever that may be, and if the Democratic Party is willing to support this massive rip-off and send Vietti or some other politician to the CSM, it means that, as a party, they haven’t learned any lesson whatsoever, that they haven’t changed at all and that, therefore, they don’t deserve our trust.
The only way to let them know is to write in, phone them, sign the appeal, send these gentlemen faxes and e-mails, threatening to never again vote for them unless they finally give us a CSM that is free of party interference, or at least free of interference from those parties that say, believe and hope that the people believe are different from that of Berlusconi. Spread the word!
Postato da Beppe Grillo alle 08:39 AM in Information